CASE VI.

Q. A person at the point of death nominated his wife and the brother of his son-in-law to the charge of the persons and property of his infant son and daughter, the former of whom was six years old, and the latter only two years old. The minor son institutes a suit against a stranger to recover some personal property. Under these circumstances, is the action instituted by the minor son maintainable in Law or not?

R. It appears from the petition presented by the wife and the brother of the son-in-law of the deceased, that he (the deceased) committed to them the care of his infant children, and made over to them his entire property in trust for the support of those children. They are therefore, according to the Moohummudan Law, executors of the deceased to all intents and purposes; as is laid down in the Shurhi Viqaya,-" He to whom the father has entrusted the disposal of his family and fortune is his executor." An executor duly constituted must be considered the guardian of the son; as appears from a passage in the Viqaya,-" The guardianship of a minor legally belongs, first to the father, next to his executor, next to the paternal grandfather." A suit instituted by two executors conjointly or by a minor, by either of them separately, for the right of an orphan, with the ap is maintainable in Law; according to the authority already quoted,-" If a man appoint two persons as his executors, they are not entitled to act separately, except for the performance of the deceased's funeral ceremony or for the preferment of a claim to maintain his right." In the present case the action is good, because both the executors concurred and supported the claim set up by the minor son.

An action may

be instituted

probation of one of his guardians.

CHAPTER VIII.

PRECEDENTS OF SLAVERY.

CASE I.

Q. A Moosulmaun having been sent by the ruling power to subdue some rebellious Hindoos, and having obtained a victory over them, took several of their body prisoners. Among them, there was one boy of tender years, whom he made his own slave, and afterwards, having instructed him in the principles of the Moohummudan faith, he adopted him as his own son, and, in his education and other matters, he treated him with the care and consideration of a parent. Under these circumstances, can the boy so recognized as the son of the person above alluded to, be considered as his slave agreeably to Law?

what means

R. Admitting that the boy was legally reduced to Emancipation slavery (which by no means appears clearly from the of a slave by question), if the Moosulmaun recognized him as his son, implied. and declared him to be such, he will be free, even though that may not have been the intention of the person who made the declaration. If a person should say "this is my son" or "this is my daughter," emancipation follows of course, without proof of intention. The reason is, that, as the expression, in its strict sense, is not applicable, it must be taken, in its metaphorical sense, to mean emancipation; whatever may have been the intention of the person who used it. Consequently, if the Moosulmaun, in this case, not only called the boy his son, but also treated him with parental care and consideration, he must a fortiori be accounted free, and after his emancipation has been once established, he cannot, under any circumstances, revert to the condi

tion of slavery. Property over mankind is terminable by emancipation, which annuls proprietary right, for, in the original creation of man, he was not intended as a fit subject of property.

CASE II.

Q. 1. What description of slaves are authorized by the Moohummudan Law?

R. 1. All men are by nature free and independent, and no man can be a subject of property, except an infidel, inhabiting a country not under the power and controul of the faithful. This right of possession; which the Mooslims have over Hurbees, (i. e. infidels, fighting against the faith) is acquired by Isteela, which means the entire subduement of any subject of proper ty by force of arms. The original right of property therefore, which one man may possess over another, is to be acquired solely by Isteela (as defined above); and cannot be obtained in the first instance, by purchase, donation or heritage. When therefore an Imam subdues, by force of arms, any one of the cities inhabited by infidels, such of them as may be taken prisoners become his rightful property; and he has the power of putting them to death, or making them slaves, and distributing them as such among the Ghazees, (i. e. victorious soldiers, particularly when fighting against infidels); or he may set them at liberty in a Moosulmaun country, and levy the capitation tax. Should he make them slaves, they become legal subjects of property, and are transferable by sale, gift or inheritance; but if, after captivity, they should become converts to the faith (Islam), the power of death over them is thereby barred, though they would continue slaves; for slavery being the necessary consequence of original infidelity, the subsequent conversion to Islam does not affect the

of the differ.

is created.

prior state of bondage, to which the individual has been regularly rendered liable by Isteela, provided this be clearly established. From this it is evident that the same rules are applicable to slaves of both sexes. If slaves are afterwards sold or given away, by the Imam or by the Ghazees who shared at the distribution; or if they should become the property of another by inheri- Enumeration tance; they then become slaves, under the three differ- ent modes by ent classes of purchase, donation, and inheritance. If which slavery a female slave should bear offspring, by any other than by her legal lord and master, whether the father be a free-man or slave, and whether the slave of the said master or of any other person, in any of these cases, such offspring is subject to slavery; and these are called Khanazad, i. e. born in the family. But if the children be the avowed and acknowledged offspring of the rightful owner, they are then free, and the mother of them, (being the parent of a child by her master) becomes at his decease free also. And this rule is applicable to all their descendants to the latest posterity. The practice among free-men and women, of selling their own offspring during times of famine, is extremely improper and unjustifiable; being in direct opposition to the principles above stated; viz. that no man can be a subject of property, except an infidel taken in the act of hostilities against the faith. In no case then can a person legally free become a subject of property; and children not being the property of their parents, all sales or purchases of them, as of any other article of illegal property, are consequently invalid. It is also improper for any free-man to sell his own person, either in times of famine, or though he be oppressed by a debt which he is unable to discharge. For in the first of these cases a famished man may feed upon a dead body; or may even steal what is necessary for his support, and a distressed debtor is not liable to any fine or

punishment. We are not acquainted with the principal or detailed circumstances, which led to the custom prevailing in most Moosulmaun countries, of purchasing and selling the inhabitants of Ethiopia, Nubia, and other negroes; but the ostensible causes are, either that the negroes sell their own offspring; or that Moosulmaun or other tribes of people take them prisoners by fraud and deceit; or seize them by stealth from the sea shores. In such cases however they are not legally slaves; and the sale and purchase of them are consequently invalid. But if a Moosulmaun army, by orders of an Imam, should invade their country, and make them prisoners of war, by force of arms, they are then legal slaves; provided, that such negroes are inhabitants of a country under the controul and government of infidels; and in which a Moo ulmaun is not entitled to receive the full benefit and protection of his own laws. With regard to the custom prevailing in this country, of hiring children from their parents, for a very considerable period, such as for seventy or eighty years, and under this pretext making them slaves, as well as their progeny also, under the denomination of Khanazad (domestic slaves), the following laws are applicable: It is lawful and proper for parents to hire out their children to service; but this contract of hire becomes null and void, when the child arrives at years of discretion, as the right of paternity then ceases.

A freeman, who has reached the years of discretion, may however enter into a contract to serve another, but not for any great length of time, such as for seventy years; as this also is a mere pretext, and has the same object of slavery in view; whereas the said free-man has the option of dissolving any contract of hire under either of the following circumstances:-First, It is the custom, in contracts of this nature, for a person hired on service to receive a compensation in money, clothes and food,